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Employment highlights - 31 October 2007

Sporting events such as the recent Rugby World Cup can have a significant impact on employees. They can boost morale and improve motivation and productivity but at the same time can increase irresponsibility and absenteeism. In 2006, 11 million more sick days were taken than in 2005, which the Confederation of British Industry blamed on “sickies” and is widely believed to have been a result of “World Cup-itis.”

There is no end to the line-up of major sporting events. Whilst the Rugby World Cup may be over, next year sees the Olympic Games in Beijing, and football returns with the European Championships in Austria and Switzerland.

Dealing with employees during major sporting events gives rise to a number of issues in the employment law field, particularly given the expectations of employees and their demands for a work/life balance. Whilst employers may wish to be flexible with their employees in order to harness the positive effects of sport, they must also deal with the negatives, which include absence, misconduct and discrimination. This edition of Employment Highlights looks at the different employment issues which can arise and the steps which employers ought to take to deal with employees.

What if an employee is absent from work?

Unexpected absences increase during major sporting events. According to a recent survey, one in five of the population admits to taking a sickie during a major sporting event, either to watch the game or to recover the next day. The effect of this is to create pressure on businesses, in particular on those left to cover for their colleagues’ absences.

So, what happens if the day after the Rugby World Cup final, several employees fail to turn up for work? The employer wants to dismiss them. Can he? Before the employer takes any steps in dismissing an employee the reason behind these absences should be investigated. In its advisory handbook, “Discipline and Grievances at Work,” ACAS offers guidance to employers on how to handle persistent short-term absenteeism:

Absences should be investigated promptly and the employee should be consulted and asked to provide an explanation at a return to work interview.

Where there is no medical evidence to substantiate frequent self-certified absences, the employee should be asked to consult a doctor to establish whether medical treatment is necessary and whether the underlying reason for the absence is work-related. (In relation to this, it is worth considering the inclusion in a contract of employment of a right to insist on the employee visiting a doctor and disclosing the medical report).

If, after investigation, it appears that there were no acceptable medical reasons for the absence the matter should be treated as a conduct issue and dealt with under the disciplinary procedure. (Note that the statutory disciplinary and dismissal procedures should be followed depending on the potential outcome).

In all cases the employee should be told what improvements in attendance are expected and warned of the likely consequences if this does not happen.

If there is no improvement, an employer should decide on appropriate action, taking into account the employee’s length of service and performance, the likelihood of a change in attendance, the availability of suitable alternative work and the effect of past and future absences on the business.

If an employer considers that dismissal may be the appropriate course of action, it must be clear about the grounds on which it is to dismiss. It is necessary to show that the reason for the dismissal is one of the potentially fair reasons listed in section 98 Employment Rights Act 1996 (ERA).

There are three potentially fair reasons for dismissing for absenteeism:

Conduct: Taking a “sickie” is misconduct as is falsifying the reason for absence on a self-certification form. However, the problem with disciplinary action and dismissal in relation to sickness absence is obtaining proof that the absence was not what the employee claims it to have been, especially where absence is perhaps just a single day. Whilst a particular absence may look highly suspicious, employers need to bear in mind that an accusation without proof may amount to a breach of the implied duty of mutual trust and confidence, entitling the employee to resign and bring a claim.

Capability: Where there are acceptable medical reasons for the absence, this may amount to a capability issue, to be assessed by reference to skill, aptitude, health or any other physical or mental quality, which may give the employer a fair reason to dismiss (subject to adequate warnings). In this case, employers need to bear in mind the provisions of the Disability Discrimination Act 1995 (DDA). Whilst the DDA is rarely relevant when dealing with short-term absence issues, an employer needs to investigate the issue, as absence may result from an underlying condition that amounts to a disability. For example, whilst an alcohol problem falls outside the scope of the DDA, related conditions such as depression may fall within its ambit depending on their long-term effect. If a disability is discovered, it will be necessary to comply with the obligation to consider reasonable adjustments.

Some other substantial reason of a kind to justify dismissal: Where sporting events cause significant and unacceptable levels of short-term absence, an employer may be able to use this as a reason for dismissal. In the case of International Sports Co. Limited v Thomson [1980] IRLR 340 the Employment Appeal Tribunal held that in order to dismiss for an unacceptable level of intermittent absence a two-stage test should be applied:

There should be a fair review by the employer of the employee's attendance record and reasons for absence; and

The employee must be given appropriate warnings of dismissal after having been given an opportunity to make representations.

In all of these examples, the employer must be acting reasonably in dismissing for that reason (section 98(4) ERA). Dismissal would have to be a reasonable response to the employee’s actions, taking into account any mitigation or representations made. An employment tribunal may be influenced by the “mitigating circumstances” of a national desire to watch a major sporting event, and may conclude that dismissal is outside the band of reasonable responses open to the employer in the circumstances. There are therefore significant risks associated with dismissal, and evidence that the circumstances of persistent absence have been brought to the employee’s attention and adequate warnings given will be important to the employer’s case.

Discrimination in the workplace

In addition to potential unfair dismissal claims which may arise, employers may also find themselves subject to discrimination claims.

Whilst employers may wish to profit from the goodwill that can be generated during sporting events, for example by giving employees more flexibility over their working hours, allowing them to take holidays, or providing TV screenings of games, it is necessary to bear in mind the potentially discriminatory effects of such actions.

There are sex, age and race discrimination issues that may arise from preferential treatment given to those with an interest in sport, or detrimental treatment given to employees who are not interested or who follow a national team other than England, for example. Whilst in practice it is advisable for employers to be flexible, care should be taken not to introduce a “provision, criterion or practice” that has a discriminatory impact.

What happens therefore, if, in an attempt to reduce absenteeism and raise workplace morale (and on the optimistic assumption that England qualifies), an employer decides to screen England games in Euro 2008 during work hours in its canteen, and provides beer to those who attend. What should an employer do if a Portuguese employee requests permission to watch Portugal’s games in the canteen during work hours, while a Muslim employee is alarmed to be handed a bottle of beer on entering the canteen.

If the employer refuses to screen the Portugal games, the employee could bring a claim of race discrimination on the basis of less favourable treatment on the ground of nationality. Handing out free beers could offend employees who do not drink, for example on religious grounds, although it has been held not to be discrimination on the ground of religion or belief to offer alcohol as an incentive (Khan v Direct Line Insurance plc, 1400026/05 (ET)). When formulating strategies to deal with sporting events, employers need to be aware of workforce diversity.

In addition, some employees may request a holiday to avoid being in the office during a sporting event, or to cope with a hangover the following day. Whilst granting holiday requests is a good way of avoiding unauthorised absences, this must be handled fairly, and sports fans should not be given preferential treatment to the detriment of non-sports fans. For example, a 50 year old female employee with children wishes to take two weeks off during the school holidays, which clashes with Euro 2008. The employer is reluctant to grant the holiday request during that fortnight, as levels of absence may be high. The employer should not refuse holiday to the female employee because of potential absenteeism, as this could lead to claims of sex and age discrimination. A female employee could argue that she was less favourably treated in comparison to younger male colleagues, as research suggests that it is younger male employees who tend to take a greater interest in sporting events.

As a major sporting event approaches, an employer should remind employees that requests for holidays will be dealt with in accordance with the usual holiday procedure. No favourable treatment should be granted to sports fans, because of the potentially discriminatory effect of doing so. Conversely, employees with an interest in sports should not be treated less favourably - any use of an employer’s absence control policy should be consistent with the way in which it is used at other times, and employees should not be dealt with more harshly simply because of suspicions that any absence was unauthorised.

Breach of company policies

Employers will want to ensure that employees are fully aware of the company policies in place, such as alcohol in the workplace or the IT policy. For example, what happens if three employees want to watch coverage of the athletics at the Olympic Games in Beijing, to be transmitted live in Britain during working hours? Two of the employees decide to watch at the local pub and drink alcohol prior to their return to work. The other employee downloads a live stream of the coverage over the internet on one of the employer’s computers.

In this scenario, there may be a breach of a “no alcohol” policy, which would be a conduct issue to be dealt with under the employer’s disciplinary procedure. Many workplaces have a strict “no alcohol” rule because of the duty to provide a safe working environment. The seriousness of the issue will depend on the working environment, for example if employees work with heavy machinery or drive vehicles. According to the Health and Safety Executive, alcohol is a factor in around a quarter of all industrial accidents.

The other employee may have breached an IT security policy if there are rules in place governing the downloading of web sites, which is also a conduct issue which can give rise to disciplinary procedures and perhaps dismissal, depending on the seriousness of the breach.

The advice to employers is that prior to sporting events they should publicise their alcohol and IT security policies and remind employees of the consequences of any breach.

What should an employer do?

As ACAS advises, employers need to be flexible but firm in the way in which they manage employees during major sporting events. Recognition of the need for a work/life balance is important in maintaining a healthy working environment, and sporting events can be a way of boosting morale and encouraging employees to work together. Employers should therefore do the following

Ensure that all relevant policies are publicised to the employees prior to the event. Employees should be aware of any policy relating to absence from work, alcohol use and the use of the internet, and the consequences that may arise from any breach of these policies.

If an employer is intending to commence disciplinary action due to the absence of the employee an employer must ensure that it follows the correct disciplinary procedure. It must also investigate the reason for the absence. Any action taken must take into account the employee’s attendance records and give the employee fair warning prior to dismissal.

An employer must ensure that any efforts to accommodate employees who are sports fans do not result in unlawful discrimination against other employees.

To benefit from major sporting events requires co-operation, flexibility and responsibility from both employers and employees. Employers need to communicate with employees, advising them of the flexibility allowed during sporting events, whilst at the same time reminding employees of the responsibility required. Through this it should be possible to anticipate the potentially negative impacts and put in place measures to avoid them, whilst at the same time harnessing the excitement and enthusiasm generated by sport.

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